A parolee from a Larimer County escape case could go back to prison as a result of an error uncovered by the audit.

Jun. 2, 2013

Brian Brock / Colorado Department of Corrections

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Tomas Vigil / Colorado Department of Corrections

Department of Corrections sentencing audit

(numbers as of May 14): Total cases for initial review: 8,415 Second phase: Cases flagged for “possible issues”: 2,556 Cases sent back to court judges for review (more pending): about 550 Cases changed (so far): about 56 Total number of state prison inmates: 20,087 Source: Department of Corrections and Colorado Judicial Branch

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Two offenders convicted in Larimer County are among hundreds statewide facing the prospect of more prison time because of an audit spurred by the slaying of the Colorado prisons chief.

Brian Brock, 37, a parolee who’s set for possible discharge later this month, could find himself back behind bars.

Larimer County District Attorney Cliff Riedel said “in this case there really is no confusion, only a mistake made by the court” on the document sending Brock to prison. Brock’s two-year sentence for escape was to be served after he finished a previous sentence, not at the same time.

Officials have reviewed thousands of cases to ensure that mistakes in sentencing records, like the one blamed for letting Evan Ebel out of prison four years early, get corrected.

Ebel is suspected of murdering Department of Corrections executive director Tom Clements and a pizza delivery driver, as well as shooting a Texas police officer before dying in a shootout with authorities last March.

Less than three months later, years-old cases have returned to district court dockets across the state amid an unprecedented audit. Judges and lawyers are reviewing transcripts and working to identify mistakes.

Convicts whose cases are under review were pared down from 8,415 offenders in prison, on parole, in a halfway house or on the lam. Some who’ve gotten a taste of freedom after prison are being sent back, Alison Morgan with the Colorado Department of Corrections confirmed.

“What it is ensuring is that offenders are serving their correct sentence,” she said. “Holding offenders accountable to serving is an aspect to making Colorado safer.”

The other Larimer County case under review is the escape case of Tomas Vigil, 39, a prisoner in Limon Correctional Facility whose release is slated for May 2014. That date could get pushed back as much as three years. But Riedel said an error is less likely in his case.

'Mistakes happen'

Details are a big deal in courtrooms, as anyone who’s sat through a jury trial has observed. But with a criminal court system still operating largely through paper files, errors occur.

He said that in recent weeks, about 56 cases have been modified as a result of the audit and more are expected as the audit continues into summer.

“We haven’t drilled down to the level to know exactly why” changes were made, he said, adding that more information will be available as the process continues.

In Ebel’s case, he was sentenced in Fremont County to four years of prison for assaulting a prison guard. But the court clerk didn’t record that the sentence was to be served after he completed his previous sentence — for carjacking, home burglary and other offenses that landed him in prison, according to a previous report by USA Today.

When someone convicted of a crime is sentenced, the judge decides whether the sentence of each count is to be served concurrently (at the same time) or consecutively (one after another) to any others. Ebel’s sentence was supposed to be consecutive, but the paperwork didn’t mention that, so the Department of Corrections, by default, made it concurrent.

On Tuesday, Gov. John Hickenlooper signed a bill into law requiring the Department of Corrections to seek clarification from the courts when it’s not specified whether a sentence is to be concurrent or consecutive.

McCallum said while it’s yet to be determined what led to mistakes in the cases being reviewed, technology upgrades likely would help avoid confusion.

“We live in a computerized environment,” he said. “But we’re still in paper in the criminal courts and trying to move in that direction, to electronics. Paper has to be electronic.”

Civil cases have been digitized in recent years, but similar change hasn’t made its way to the criminal courts. And it’s tough to say when that can happen.

“It depends how fast the Legislature would shake loose a whole bunch of money so we can change the system,” McCallum said.

Meanwhile, judges run their courts as they see fit; sometimes that involves them writing the mittimus (the document committing the defendant to prison), other times the clerk does it and the judge signs off. McCallum said that with as many as 50 cases coming across a Colorado district judge’s court in a day, it’s conceivable that mistakes happen.

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Review 'ASAP'

The two Larimer County cases in question involve men sent back to prison after escaping a halfway house in unrelated incidents.

Brock was sentenced in 2010 to two years in prison for escape. He’d gone to Poudre Valley Hospital for treatment and left without telling anyone. He already was serving a Boulder County sentence of three years for vehicular eluding when the new case arose.

Larimer County District Attorney Cliff Riedel said in an email that there was clearly a mistake.

“In Mr. Brock’s case, the record of his sentencing hearing made it very clear that the sentence was to run consecutively. Apparently the court, when it sent down the mittimus to DOC, did not accurately reflect that the sentence was a consecutive sentence,” Riedel said, adding that Brock had been “fully advised” that he was getting a consecutive sentence when the judge sent him back to prison.

Vigil was sentenced in 2011 to three years in prison for escape. He’d received two additional years in 2010, also for escape, and was serving six years in prison stemming from a La Plata theft and forgery case.

His court file contains a sticky note asking for review “ASAP” to determine whether his sentence was to be consecutive or concurrent.

“I don’t think there will be any change on Mr. Vigil’s case,” Riedel said. “The judge ordered his sentence to run concurrently, and that appears to be a legal sentence. Therefore, his sentence should not change.”

Neither Brock nor Vigil appeared at their hearings May 24 as District Judge Thomas French discussed the cases and plans for review with lawyers.

Both cases were brought back into French’s court because that’s where they originated, although the Brock case occurred under previous judge Jolene Blair. Blair was ousted by voters in the 2010 election after a campaign against her because of her role prosecuting the 1999 wrongful murder conviction of Tim Masters.

The Vigil case is set for a status conference June 7, and the Brock case is set for a hearing June 18. If the cases are unchanged, Brock is set for possible release June 29, and Vigil is set for release in May 2014, according to the Department of Corrections website.

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Sorting out errors

The closer a person is to being released, the higher the priority for auditors, Morgan said.

In the review process, questionable cases are broken down by how much time remains on the inmate’s sentence. Those with less than a month are the first in line for the secondary review.

It’s not yet clear how many cases are getting sent back to Larimer County, but attorneys with the public defender’s office and the district attorney’s office say Brock and Vigil are the only two they’ve heard of so far.

“It’s very time-consuming,” Morgan said. “Thorough analysis of a file, depending on the number of cases and convictions, could take 45 minutes or four hours.”

It’s a cooperative process stemming from an early-April order by Hickenlooper to conduct the audit, and it has involved the Department of Corrections, Colorado Judicial Branch and the Colorado Attorney General’s Office.

About 1 percent of the 20,000-person population of the state’s prison system is expected to be affected.

The Coloradoan was unable to reach Brock or Vigil, as the Department of Corrections forbids media phone interviews, and a phone number for Brock’s wife in his court file had been disconnected.